The U.S. Equal Employment Opportunity Commission (EEOC) just issued revised enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.

While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an "individualized assessment" of the position in question. Furthermore, the guidance will not prohibit job applications that have a "check the box" for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.

SHRM considers criminal background checks an appropriate tool to help employers make informed hiring decisions to ensure the safety and well-being of their employees and customers. SHRM has conducted national research that shows a majority of employers are thoughtful in the hiring process and do not take a one-size-fits-all approach to criminal background checks, as required by laws designed to prevent discrimination in hiring.

20 percent of organizations conduct criminal background checks on job candidates because they are required to do so by law

Importantly, the EEOC planned to issue additional guidance today on employer use of credit reports and reasonable accommodation under the Americans with Disabilities Act (ADA) of 1990. Both items were excluded from the EEOC agenda today.

We understand that today’s criminal check guidance may lead to more, not less, confusion for employers. To help employers comply with today’s EEOC guidance, SHRM will e-mail a special report on the guidance and what employers should be doing to comply with it on Friday, April 27. Check your inboxes on Friday for the special report.

In addition, SHRM plans to offer a webcast on the new guidance and its impact on the workplace on Thursday, May 3 at 2 p.m. ET (90 minutes). Click HERE to register for the webcast.

Should you have any immediate questions, please contact Nancy Hammer, SHRM Senior Government Affairs Policy Counsel, at nancy.hammer@shrm.org.

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.